Make Trials Less Complex: Don't Pursue Two Counts Where One will Do


Where an accused is charged with multiple counts and it is clear that one of the counts will be stayed in the event of a conviction of both, the Crown should consider, either before trial or before the jury is charged, whether to pursue both counts. 

R. v. R.V., 2019 ONCA 664, at para. 147 (obiter).

The trial judge should canvass this issue with counsel during both the pre-trial and pre-charge conferences. While, ultimately, it is up to the Crown to decide whether a charge in the indictment should go to the jury for a verdict, Crown should be mindful of the Court of Ontario’s repeated prescription that all trials, whether judge-alone or judge and jury, should be made less complicated, not more complicated. Proceeding with duplicative counts complicates and prolongs the trial and is a recipe for jury confusion and inconsistent verdicts.

See R. v. R.V., 2019 ONCA 664, at paras. 146, 147 (obiter). 

Unfortunately, proceeding with duplicative counts is not unusual; in fact, it is sometimes the norm. For instance, an accused suspected of sexually touching a child is commonly charged with both sexual assault and sexual interference in relation to the same conduct.[FN]  In such an instance, a conviction on both counts will result in one of the counts being stayed based on Kienapple v. R., [1975] 1 S.C.R. 729.

Stuart O’Connell, O’Connell Law Group. 

[FN] As the Court of Appeal for Ontario noted, however, there may be cases where the distinction between sexual assault and sexual interference makes a difference, for example: where the age of the complainant is an issue; where the difference between the mens rea requirements for the two offences may make a difference; or where the Crown has some uncertainty about how the evidence will ultimately unfold: R. v. R.V., at para. 147

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